Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (v) If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law. (vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available. (vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements. (viii) No offering, sale or other disposition of any Common Stock of the Company will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, grant options and issue shares upon the exercise of options issued pursuant to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period). (ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market. (x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements"). (xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus. (xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act"). (xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the Underwriters. (ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 2 contracts
Samples: Underwriting Agreement (Boston Communications Group Inc), Underwriting Agreement (Boston Communications Group Inc)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters with respect to (i) through (x) below, and with the Selling Shareholders with respect to (i) through (v) only that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Representatives or the Selling Shareholders shall not previously have been advised and furnished with a copy or to which the Representatives or the Selling Shareholders shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives and the Selling Shareholders promptly (A) when the Registration Statement or any post effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives and the Selling Shareholders in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies each Selling Shareholder one copy of the Registration Statement and all amendments thereto including all exhibits filed therewith, therein and will deliver to the Representatives such number of copies of the Registration Statement (including such number Statement, one of copies of the which will be signed and will include all exhibits filed therewith that may reasonably be requested)therewith, and documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(v) Within the time during which a prospectus relating to the Shares is required to be delivered under the Act, the Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the UnderwritersUnderwriters or the Selling Shareholders, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company willshall not (a) issue, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the SEC any registration statement relating to, any additional shares of its common stock or securities convertible into or exchangeable or exercisable for any shares of its common stock, enter into a period transaction which would have the same effect or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, or (b) grant any options whatsoever in respect of five years from the Closing Dateits shares, deliver to the Representatives copies except grants of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange employee stock options pursuant to the requirements terms of such exchange or with a plan in effect on the Commission pursuant to the Act or the Securities Exchange Act date of 1934this Agreement, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale or other disposition of any Common Stock of the Company will be made each case for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with without the prior written consent of Alexthe Representatives. Xxxxx & Sons IncorporatedThe foregoing restrictions shall not apply to any registration statement, except that the Company mayor any shares issued thereunder, without such consent, grant options and issue shares upon the exercise of options issued pursuant relating to the Company's 1996 Stock Option Plan proposed acquisition of Pennichuck Corporation, the issuance by the Company of up to 150,000 Shares under the Company's shelf registration statements or the issuance of shares under the Company's Dividend Reinvestment and 1996 Employee Direct Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)Plan.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(xviii) The Company has caused each executive officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the UnderwritersUnderwriters ("LOCKUP AGREEMENTS"), pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of, directly or indirectly make or cause any offeringindirectly, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements")the Representatives.
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiiiix) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xivx) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with each of the several Underwriters that:
(i) No offeringEach Selling Shareholder shall not offer, sale sell, contract to sell, pledge or other disposition (not including the exercise of an option to purchase otherwise dispose of, directly or indirectly, any additional shares of Common Stock) of Common Stock the Company's common stock or securities convertible into or exchangeable or exercisable for any shares of the Company owned by Company's common stock, enter into a transaction which would have the Selling Shareholder same effect or request for registration for publicly disclose the offer intention to make any such offer, sale, pledge, disposition or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made filing for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with without the prior written consent of Alexthe Representatives. Xxxxx & Sons Incorporated and except The foregoing restrictions shall not apply to the proposed purchase by the Company of 2,500,000 shares from the Selling Shareholders, as specifically provided described in the Lockup Registration and Share Purchase Agreement delivered by such between the Company and the Selling Shareholder to the UnderwritersShareholders.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 2 contracts
Samples: Registration and Stock Purchase Agreement (Philadelphia Suburban Corp), Underwriting Agreement (Philadelphia Suburban Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from Prior to the Closing Date, deliver the Company will furnish to the Representatives copies Underwriters, as soon as they have been prepared by or are available to the Company, a copy of annual reports and copies any unaudited interim financial statements of all other documents, reports and information furnished the Company for any period subsequent to the period covered by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined most recent financial statements appearing in the Rules Registration Statement and Regulations, which are not consolidated in the Company's financial statementsProspectus.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons IncorporatedDeutsche Bank Securities Inc. ("DBSI"), except provided, however, that the Company maymay (i) grant stock options, without such consentrestricted stock or other stock-based awards to employees, grant options consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares upon of its Common Stock pursuant to: (A) the exercise of such options issued and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to offer, sell or dispose of such shares until the expiration of such 90 day period)those set forth above in this sentence.
(ix) The Company will use its best efforts to list, subject to notice of issuance, list the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director director, each Selling Shareholder, and specific shareholders each other shareholder and option holder of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this agreementAgreement, a letter or letters, in the form and substance satisfactory to the Underwritersprovided by DBSI, pursuant to which each such person shall agree has agreed not to directly offer, sell, sell short or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement DBSI ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the ProspectusProspectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the Underwriters.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 2 contracts
Samples: Equity Underwriting Agreement (Unica Corp), Equity Underwriting Agreement (Unica Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and Regulations. To the extent applicable, the copies of the Registration Statement (C) file on a timely basis including all reports and exhibits filed therewith), any definitive proxy Preliminary Prospectus or information statements required Prospectus furnished to the Underwriters shall be identical to the copies thereof electronically filed by the Company with the Commission subsequent on XXXXX, except to the date of the Prospectus and prior to the termination of the offering of the Shares extent permitted by the Underwriters.Regulation S-T.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amendedAct. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.. To the extent applicable, such reports and documents shall be identical to the copies thereof electronically filed with the Commission on XXXXX, except to the extent permitted by Regulation S-T.
(viii) No offeringThe Company will not sell or otherwise dispose of, sale directly or indirectly, any shares of Common Stock or other disposition securities convertible into or exchangeable or exercisable for shares of any Common Stock or derivative of the Company will be made Common Stock (or enter into any agreement for such) for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company Agreement otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, Incorporated except that the Company may, without such consent, grant options and (A) issue shares upon the exercise of options outstanding on the date of this Agreement issued pursuant to its [1982 Stock Option Plan, as amended, the Company's 1996 1992 Stock Option Plan and 1996 Employee the 1995 Stock Purchase Plan or issue Option Plan] and (B) grant options and offer to sell shares as consideration for acquisitions of Common Stock to its employees and directors pursuant to the plans listed in clause (provided that A). The Company will not file a registration statement on Form S-8 under the recipient Act until 90 days after the date of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)this Agreement.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq NASDAQ National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer to sell, contract to sell, transfer or otherwise dispose of, directly or indirectly make or cause indirectly, any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of , any options, rights or warrants to purchase any shares of Common Stock (including any stock appreciation right, or similar right with an exercise or conversion privilege at a price related to, or derived from, the market price of the Company owned by such person Common Stock) or request any securities convertible into or exchangeable for shares of Common Stock or engage in any hedging transactions with respect to the registration for Common Stock that may have an impact on the offer or sale of any market price of the foregoing (or as to which such person has the right to direct the disposition of) Common Stock for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares substantially as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the CompanyCompany in violation of the Act or the Rules and Regulations or the Exchange Act and the rules and regulations of the Commission thereunder.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offeringSuch Selling Shareholder will not offer to sell, sale contract to sell, transfer or other disposition (not including the exercise of an option to purchase otherwise dispose of, directly or indirectly, any shares of Common Stock) , any options, rights or warrants to purchase any shares of Common Stock (including any stock appreciation right, or similar right with an exercise or conversion privilege at a price related to, or derived from, the market price of the Company owned by Common Stock) or any securities convertible into or exchangeable for shares of Common Stock or engage in any hedging transactions with respect to the Selling Shareholder or request for registration for Common Stock that may have an impact on the offer or sale of any market price of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made Common Stock for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the UnderwritersIncorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the CompanyCompany in violation of the Act or the Rules and Regulations or the Exchange Act and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Ade Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and Regulations. To the extent applicable, the copies of the Registration Statement (C) file on a timely basis including all reports and exhibits filed therewith), any definitive proxy Preliminary Prospectus or information statements required Prospectus furnished to the Underwriters shall be identical to the copies thereof electronically filed by the Company with the Commission subsequent on XXXXX, except to the date of the Prospectus and prior to the termination of the offering of the Shares extent permitted by the Underwriters.Regulation S-T.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for to the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.shareholders
(viii) No offeringThe Company will not issue, sale sell or otherwise dispose of, directly or indirectly, any shares of Common Stock or other disposition securities convertible into or exchangeable or exercisable for shares of any Common Stock or derivative of the Company will be made Common Stock (or enter into any agreement for such) for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company Agreement otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, grant options and (A) issue shares upon the exercise of options outstanding on the date of this Agreement issued pursuant to the Company's its 1991 Amended and Restated Stock Option Plan, 1996 Non-Employee Directors Stock Option Plan and 1996 Employee and Consultant Stock Purchase Plan or issue Option Plan, (B) grant options and offer to sell shares as consideration for acquisitions of Common Stock to its employees and directors pursuant to the plans listed in clause (A), provided that the recipient Company will not grant any options which will become exercisable within 180 days after the date of this Agreement and (C) issue shares in any such acquisition agrees of Common Stock to its employees pursuant to the Employee Stock Purchase Plan, provided that the Company will not to offer, sell or dispose permit the withdrawal of such shares until from the expiration plan for 180 days after the date of such 90 day period)this Agreement.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish be furnished to you, on or prior to the date of this agreementAgreement, a letter or lettersletters executed by (i) each officer and director of the Company, substantially in the form attached hereto as Exhibit A-1; (ii) certain shareholders of the Company, substantially in the form attached hereto as Exhibit A-1 or A-2; and substance satisfactory to the Underwriters, pursuant to which (iii) each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise holder of an option options to purchase shares of Common Stock) of any shares of Common Stock of (other than the Company owned by such person or request officers and directors referred to in clause (i) above), substantially in the registration for the offer or sale of any of the foregoing (or form attached hereto as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements")Exhibit A-3.
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the ProspectusProspectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Such Selling Shareholder has the right furnished to direct the disposition of) will be made for a period of 90 days after you, on or prior to the date of this Agreement, directly a letter or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided letters substantially in the form attached hereto as Exhibit A-1 or A-2 (such letters of the Selling Shareholders and the letters referred to in Section 4(a)(x) being collectively referred to as the "Lockup Agreement delivered by such Selling Shareholder to the UnderwritersAgreements").
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the such Selling Shareholders Shareholder agrees to deliver to you the Representatives prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Information Management Associates Inc)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement and the ADS Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives Representative shall not previously have been advised and furnished with a copy or to which the Representatives Representative shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives Representative promptly (A) when the Registration Statement and the ADS Registration Statement (if its effectiveness is subsequent to the execution and delivery of this Agreement) or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives Representative in endeavoring to qualify the Shares Offered Securities for sale under the securities laws of such jurisdictions as the Representatives Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives Representative may reasonably request for distribution of the SharesOffered Securities.
(iv) The Company will deliver to, or upon the order of, the RepresentativesRepresentative, from time to time, as many copies of any Preliminary Prospectus as the Representatives Representative may reasonably request. The Company will deliver to, or upon the order of, the Representatives Representative during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives Representative may reasonably request. The Company will deliver to the Representatives Representative at or before the Closing Date, four signed copies of each of the Registration Statement and the ADS Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives Representative such number of copies of the Registration Statement and the ADS Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives Representative may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law the Act or the rules and regulations promulgated by the Commission thereunder to be delivered in connection with sales of the Offered Securities, including by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from Prior to the Closing Date, deliver the Company will furnish to the Representatives copies Underwriters, as soon as they have been prepared by or are available to the Company, a copy of annual reports and copies any unaudited interim financial statements of all other documents, reports and information furnished the Company for any period subsequent to the period covered by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined most recent financial statements appearing in the Rules Registration Statement and Regulations, which are not consolidated in the Company's financial statementsProspectus.
(viii) No offering, sale or other disposition of any Common Stock of the Company will be made for For a period of 90 180 days (the “Initial Lock-Up Period”) after the date of this Agreementthe initial public offering of the Offered Securities, the Company will not, and shall procure its Subsidiaries, its officers, directors and specific shareholders not to, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, by or file with the Company otherwise than hereunder Commission a registration statement under the Act relating to, any additional Shares or with ADSs or securities convertible into or exchangeable or exercisable for any Shares or ADSs, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Alex. Xxxxx & Sons IncorporatedDeutsche Bank Securities Inc., except that grants of employee stock options pursuant to the Company may, without such consent, grant options terms of a plan in effect on the date hereof and issue shares upon issuances of Shares pursuant to the exercise of options issued pursuant such options; provided, however, that if (1) during the last 17 days of the Initial Lock-Up Period, (A) the Company releases earnings results or (B) material news or a material event relating to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan Company occurs, or issue shares as consideration for acquisitions (provided 2) prior to the expiration of the Initial Lock-Up Period, the Company announces that it will release earnings results during the recipient 16-day period following the last day of shares the Initial Lock-Up Period, then in any such acquisition agrees not to offer, sell or dispose of such shares each case the lock-up period will be extended until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless Deutsche Bank Securities Inc. waives, in writing, such 90 day period)extension.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares Offered Securities on the Nasdaq National Market. In connection with the application to quote the Offered Securities on the Nasdaq National Market, the Company will furnish from time to time any and all documents, instruments, information and undertakings and publish all advertisements or other material that may be necessary in order to effect and maintain such quotation.
(x) The Company has caused each officer and director and specific shareholders will ensure that it is in compliance with other applicable provisions of the Company to furnish to you, on or prior to Xxxxxxxx-Xxxxx Act and the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock corporate governance rules of the Company owned Nasdaq National Market upon the effectiveness of such provisions upon the subsequent release by such person or request the registration for Commission of rules and regulations promulgated under the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxxxxx-Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements")Act.
(xi) The Company shall apply the net proceeds of its sale of the Shares Offered Securities as set forth in the ProspectusProspectus under the caption “Use of Proceeds” and shall file such reports with the Commission with respect to the sale of the Offered Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) [The Company shall not invest, or otherwise use use, the proceeds received by the Company from its sale of the Shares Offered Securities in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").]
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stockcapital stock of the Company.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(xv) No action has been or, prior to the completion of the distribution of the Offered Securities, will be taken by the Company in any jurisdiction outside the United States and Canada that would permit a public offering of the Offered Securities, or possession or distribution of the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus issued in connection with the offering of the Offered Securities, or any other offering material, in any country or jurisdiction where action for that purpose is required.
(xvi) The Company will comply with the terms of the Deposit Agreement so that the ADRs will be executed by the Depositary and delivered to the Underwriters pursuant to this Agreement, at the applicable Closing Date.
(xvii) The Company will indemnify and hold harmless the Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Offered Securities and on the execution and delivery of this Agreement or the Deposit Agreement.
(b) Each of the Selling Shareholders Shareholders, severally and not jointly, covenants and agrees with the several Underwriters that:
(i) No offering, sale or other disposition (not including Each Selling Shareholder shall comply with the exercise of an option to purchase shares of Common Stock) of Common Stock terms of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, lock-up agreement entered into by such Selling Shareholder otherwise than hereunder or with and the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided Underwriters, substantially in the Lockup Agreement delivered by such Selling Shareholder to the Underwriters.form attached hereto as Annex A.
(ii) In order to document the Underwriters' ’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the First Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (eLong, Inc.)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amendedAct. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No Except in connection with the issuance of shares of Common Stock (A) hereunder, (B) to holders of the Noteholder Warrants (as defined in the Registration Statement) upon the exercise of such Noteholder Warrants, (C) to Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxxx and Xxxx X. Xxxxx pursuant to the Company's 1996 Warrant Plan and (D) as disclosed in the Prospectus to the Memphis/Tunica Sellers, no offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company or the Selling Shareholders otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, grant options and issue shares upon the exercise of options issued pursuant to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period).
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the The Nasdaq National Stock Market.
(x) The Company has caused each officer Xxxx X. Xxxxx and director Xxxxx Investment Associates V, L.P. and specific shareholders of Xxxxx Equity Partners V, L.P. (the Company "Institutional Shareholders") to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the UnderwritersUnderwriters (the "Lockup Agreements"), pursuant to which each such person shall agree not to directly offer, sell, sell short or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 180 days after the date of this Agreement, directly or indirectly, except (i) with the prior written consent of Alex. Xxxxx & Sons Incorporated and except or (ii) with regard to the Institutional Shareholders, the foregoing restrictions shall not apply to a distribution of the shares of Common Stock to its partners or to the transfer to any affiliate of the Institutional Shareholders or to any other transferee in a private transaction not requiring registration under the Securities Act of 1933, as otherwise amended, or to any bona fide pledge of such shares of Common Stock, provided that such partner, affiliate or other transferee and/or lender or creditor acknowledges in such letter agreement ("Lockup Agreements"writing that it is bound by the provisions of this Section 4(a)(x).
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company 1940 Act of 1940, as amended (or the "1940 Act")rules and regulations thereunder.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition (not including the exercise of an option to purchase any shares of Common Stock) of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the such Selling Shareholder or request for the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than (A) hereunder or (B) with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the UnderwritersIncorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Universal Outdoor Holdings Inc)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing promptly after having been furnished a copy, or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives and the Selling Shareholders promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the CommissionCommission relating to the Prospectus, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purposepurpose and (E) of any other notice or communication, written or oral, to or from the Commission between the date of the Agreement and 30 days after the date of this Agreement. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments and supplements thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, rule or regulation the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law, rule or regulation.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Class A Common Stock or other securities convertible into or exchangeable or exercisable for shares of the Company Class A Common Stock or derivative of Class A Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company or any of the Subsidiaries otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons IncorporatedDeutsche Bank Securities Inc. ("DBSI"), except that (A) issuances of Capital Stock pursuant to the Company may, without such consent, grant options and issue shares upon conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case, outstanding or acquisitions pending on the date of this Agreement, (B) grants of employee stock options issued pursuant to the Company's 1996 Stock Option Plan terms of a plan in effect on this date of this Agreement, issuance of capital stock pursuant to the exercise of such options or issuances of capital stock pursuant to employee stock purchase plans, incentive, benefit and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions dividend reinvestment plans in effect on the date of this Agreement and (provided that the recipient C) offers of shares of Capital Stock in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)connection with acquisitions.
(ixviii) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(xix) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreementAgreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree has agreed not to directly offer, sell, sell short or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) otherwise dispose of any shares of Class A Common Stock of the Company or any other securities convertible, exchangeable or exercisable for shares of Class A Common Stock or derivative of shares of Class A Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement DBSI (collectively, the "Lockup Agreements"). The Company will not waive any agreement by any person or entity not to offer, sell, sell short or otherwise dispose of any shares of Class A Common Stock or any other securities convertible, exchangeable or exercisable for shares of Class A Common Stock or derivative of shares of Class A Common Stock owned by such person or entity, in each case without the prior written consent of DBSI.
(xix) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xiixi) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act")0000 Xxx.
(xiiixii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Class A Common Stock.
(xivxiii) The Company will not, and will not authorize any of its Subsidiaries or any of its or their respective officers or directors (or any of the directors' or officers' respective affiliates) to take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders severally covenants and agrees with the several Underwriters that:
(i) No Other than as contemplated by this Agreement, no offering, sale, short sale or other disposition (not including the exercise of an option to purchase any shares of Common Stock) of Class A Common Stock or other securities convertible, exchangeable or exercisable for Class A Common Stock or derivative of the Company Class A Common Stock owned by the such Selling Shareholder or request for the registration for the offer or sale of any of the foregoing (or as to which the such Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of AlexDBSI. Xxxxx & Sons Incorporated and except as specifically provided in Notwithstanding the Lockup Agreement delivered by foregoing, such Selling Shareholder may, without the consent of DBSI, convert any shares of Capital Stock that it owns into shares of Class A Common Stock or transfer any shares of Class A Common Stock or securities convertible into or exchangeable or exercisable for Class A Common Stock; provided, however, that prior to any such transfer, each transferee shall execute an agreement, satisfactory to DBSI pursuant to which each transferee shall agree to receive and hold such shares of Class A Common Stock, or securities convertible into or exchangeable or exercisable for Class A Common Stock, subject to the Underwritersprovisions hereof, and there shall be no further transfer except in accordance with the provisions hereof.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the such Selling Shareholders Shareholder agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the CompanyCompany in violation of the Exchange Act.
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) A. The Company covenants and agrees with the several Underwriters that:
(ia) The Company will (A) use its best efforts to cause any amendment to the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules as promptly as possible and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by will notify the Representatives containing information previously omitted at the time of effectiveness of immediately (i) when any amendments to the Registration Statement in reliance on Rule 430A of the Rules and Regulationsbecome effective, (Bii) not file of any request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or (Diii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceedings therefor, (iv) of the receipt of any comments from the Commission, and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. The If the Commission shall propose or enter a stop order at any time, the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and and, if issued, to obtain the lifting of such order as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably requestpossible. The Company will deliver to, not file any amendment to the Registration Statement or upon the order of, the Representatives during the period when delivery any amendment of a Prospectus is required under the Act, as many copies of or supplement to the Prospectus in final form, before or as thereafter amended or supplemented, as after the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies effective date of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to which the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may shall reasonably be requested), and of all amendments thereto, as the Representatives may reasonably requestobject in writing after being timely furnished in advance a copy thereof.
(vb) If during the period in which at any time when a prospectus relating to the Shares is required by law to be delivered by an Underwriter or dealer under the Act any event shall occur have occurred as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement which the Prospectus in order as then amended or supplemented includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Act or the Regulations, or to file under the Exchange Act so as to comply therewith any lawdocument incorporated by reference in the Registration Statement or the Prospectus or in any amendment thereof or supplement thereto, the Company will notify the Representatives promptly will and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to the Representatives) that will correct such statement or omission or which will effect such compliance and will use its best efforts to have any amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus declared effective as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with lawsoon as possible.
(vic) The Company will promptly deliver to the Representatives two signed copies of the Registration Statement, including exhibits and all documents incorporated by reference therein, and all amendments thereto, and the Company will promptly deliver to each of the several Underwriters such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents incorporated by reference in the Registration Statement and the Prospectus or any amendment thereof or supplement thereto, without exhibits, as the Representatives may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with the Representatives, at or prior to the time the Registration Statement becomes effective, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares in such jurisdictions as the Representatives may designate and to maintain such qualification in effect for so long as required for the distribution thereof.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Act) to its security holders, holders and to the Representatives as soon as it is practicable to do sopracticable, but in any event not later than 15 months 45 days after the end of its fiscal quarter in which the first anniversary of the effective date of the Registration StatementStatement occurs (or not later than 90 days after the end of such fiscal quarter if such fiscal quarter is the last fiscal quarter of the fiscal year), an earning earnings statement (which need not be auditedaudited but which shall satisfy the provisions of Section 11(a) in reasonable detail, of the Act) covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(viif) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale or other disposition of any Common Stock of the Company will be made for During a period of 90 days after from the date of this Agreementthe Prospectus, the Company will not, without the Representatives' prior written consent, issue, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, by any class of capital stock of the Company otherwise than hereunder of which the Shares form a part (or with the prior written consent any securities convertible into, exercisable for or exchangeable for such class of Alex. Xxxxx & Sons Incorporatedcapital stock), except that and the Company maywill obtain the undertaking of each person who is an executive officer and/or director as of the date of the applicable Terms Agreement not to engage in any of the aforementioned transactions on their own behalf, without such consentother than the Company's sale of Shares hereunder, grant options and issue shares the Company's issuance of Class A Common Stock upon the exercise of options issued presently outstanding stock options, sales of securities pursuant to the Company's 1996 Stock Option Plan employee stock purchase plan, the grant of options to directors of the Company as provided in the Company's stock option plans and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient issuance of shares of Class A Common Stock upon exercise thereof, and in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)connection with acquisitions.
(ixg) The During a period of three years from the filing with the Commission of any Prospectus Supplement pursuant to Rule 424 of the Regulations, the Company will use furnish to the Representatives, upon request, copies of (i) all reports to its best efforts to listshareholders, subject to notice and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange or quotation system upon which the class of issuance, capital stock of the Company of which the Shares on the Nasdaq National Marketform a part may be listed.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xivh) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitutecause or result in (i) stabilization of the price of the class of capital stock of the Company of which the Shares form a part to facilitate the sale or resale of such class of capital stock, the stabilization or (ii) manipulation of the price of any securities such class of the Companycapital stock.
(bi) Each The Company will take, and will cause its subsidiaries to take, such action as may be necessary to comply with the rules and regulations of the Nasdaq National Market in respect of the offering of the Shares.
(j) The Company will apply the proceeds from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus and will take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act, and the rules and regulations thereunder.
B. Each Selling Shareholders Shareholder severally covenants and agrees with the several Underwriters that:
(i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for that during a period of 90 days after from the date of this Agreementthe Prospectus, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with will not, without the Representatives' prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder consent, sell, offer or agree to the Underwriters.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplatedsell, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not takeotherwise dispose of, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation class of capital stock of the price Company of which the Shares form a part (or any securities convertible into, exercisable for or exchangeable for such class of the Companycapital stock).
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, grant options and issue shares upon the exercise of options issued pursuant to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period).
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq Stock Market (National Market).
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly offer, sell, sell short or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the ProspectusProspectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition (not including the exercise of an option to purchase any shares of Common Stock) of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request for the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the UnderwritersIncorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) A. The ----------------------------------------------------- Company covenants and agrees with the several Underwriters that:
(ia) The Company will (A) use its best efforts to cause the Registration Statement and any amendment thereof to become effective or, if the procedure in Rule 430A of the Rules as promptly as possible and Regulations is followed, to prepare and timely file with the Commission under Rule 424(bwill notify you immediately (i) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of when the Registration Statement in reliance on Rule 430A of the Rules and Regulationsany amendments thereof become effective, (Bii) not file of any request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or (Diii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceedings therefor, (iv) of the receipt of any comments from the Commission, and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. The If the Commission shall propose or enter a stop order at any time, the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and and, if issued, to obtain the lifting of such order as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably requestpossible. The Company will deliver to, not file any amendment to the Registration Statement or upon the order of, the Representatives during the period when delivery any amendment of a Prospectus is required under the Act, as many copies of or supplement to the Prospectus in final form, before or as thereafter amended or supplemented, as after the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies effective date of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may which you shall reasonably be requested), and of all amendments thereto, as the Representatives may reasonably requestobject in writing after being timely furnished in advance a copy thereof.
(vb) If during the period in which at any time when a prospectus relating to the Shares is required by law to be delivered by an Underwriter or dealer under the Act any event shall occur have occurred as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement which the Prospectus in order as then amended or supplemented includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with any lawthe Act or the Regulations, the Company will notify you promptly will and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus declared effective as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with lawsoon as possible.
(vic) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the several Underwriters such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time the Registration Statement becomes effective, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Act) to its security holders, holders and to you as soon as it is practicable to do sopracticable, but in any event not later than 15 months 45 days after the end of its fiscal quarter in which the first anniversary of the effective date of the Registration StatementStatement occurs, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, audited but which earning statement shall satisfy the requirements provisions of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made availableRegulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(viif) The Except pursuant to this Agreement, during a period of 90 days from the date of the Prospectus, the Company willwill not, without your prior written consent, issue, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock, other than pursuant to existing employee benefit plans and agreements and other existing compensation agreements), and the Company will obtain the undertaking of each of its officers and directors and such of its shareholders as have been heretofore designated by you not to engage in any of the aforementioned transactions on their own behalf, other than the Company's sale of Shares hereunder and the Company's issuance of Common Stock upon the exercise of presently outstanding stock options.
(g) During a period of five years from the Closing Dateeffective date of the Registration Statement, deliver the Company will furnish to the Representatives copies of annual (i) all reports to its shareholders; and copies of (ii) all other documentsreports, reports financial statements and proxy or information furnished statements filed by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statementsany national securities exchange.
(viii) No offering, sale or other disposition of any Common Stock of the Company will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, grant options and issue shares upon the exercise of options issued pursuant to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period).
(ixh) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus.
(xiii) The Company shall not investwill, or otherwise use from time to time, after the proceeds received effective date of the Registration Statement file with the Commission such reports as are required by the Company from its sale of Act and the Regulations and shall also file with state securities commissions in states where the Shares have been sold by you (as you shall have advised us in writing) such a manner reports as would require are required to be filed by the Company or any securities act and the regulations of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act")those states.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xivj) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted which might constitute or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities the shares of the CompanyCommon Stock.
(b) B. Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(ia) No offeringExcept pursuant to this Agreement, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for during a period of 90 days after from the date of this Agreementthe Prospectus, such Selling Shareholder will not, without your prior written consent, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent any shares of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the UnderwritersCommon Stock.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iiib) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted which might constitute or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities the shares of the CompanyCommon Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Miller Industries Inc /Tn/)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, reports and other documents, documents as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto thereto, including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (A) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (B) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus, so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders shareholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amendedAct. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Alex. Xxxxx Browx & Sons Xons Incorporated, except that the Company may, without such consent, grant options and issue shares upon the exercise of options outstanding on the date of this Agreement issued pursuant to the Company's 1996 its 1995 Stock Option Plan and 1996 Employee Stock Purchase Plan Plan. The Company shall not file with the Commission any registration statements (including without limitation any registration statements on Form S-8 or issue shares as consideration for acquisitions (provided that any successor form) with respect to any stock option, stock purchase, restricted stock or other similar plans until at least 90 days following the recipient date of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)this Agreement.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares have its Common Stock authorized for inclusion on the Nasdaq National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreementAgreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly offer, sell, sell short or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx Browx & Sons Xons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the ProspectusProspectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition (not including the exercise of an option to purchase any shares of Common Stock) of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request for the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx Browx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the UnderwritersXons Incorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Geotel Communications Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing DateDate (provided the Company continues to be subject to the informational requirements of the Exchange Act), deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statementsAct.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder hereunder, under the Company's Incentive Plan and Stock Purchase Plan described in the Prospectus or with the prior written consent of Alex. Xxxxx Brown & Sons Incorporated, except that the Company may, without such consent, grant options and issue shares upon the exercise of options issued pursuant to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period).
(ix) The Company will use its best efforts to list, subject to notice of issuance, cause the Shares to be approved for quotation on the Nasdaq Stock Market (National Market).
(x) The Company has caused each officer and officer, director and specific shareholders shareholder of the Company to furnish to you, on or prior to the date of this agreementAgreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not not, except for the transactions contemplated under this Agreement, to directly offer, sell, sell short or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx Brown & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Loxxxx Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the ProspectusProspectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use use, the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries Subsidiary to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition (not including the exercise of an option to purchase any shares of Common Stock) of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for Common Stock or derivative of Common Stock (or agreement for such) owned by the such Selling Shareholder or request for the registration for of the offer or sale of any of the foregoing (or as to which the such Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx Brown & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the UnderwritersIncorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made availableRegulations.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the inthe Company's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or a derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company except pursuant to the Company's 1995 Incentive Stock Option Plan, as otherwise than provided hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, grant options and issue shares upon the exercise of options issued pursuant to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period).
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the Underwriters.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.&
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with each of the several Underwriters that:
(i) The Company will (A) use its best efforts shall comply with the provisions of and make all requisite filings with the Commission pursuant to cause the Registration Statement to become effective or, if the procedure in Rule Rules 424 and 430A of the Rules and Regulations is followedand shall notify the Representatives promptly (in writing, if requested) of all such filings. The Company shall notify the Representatives promptly of any request by the Commission for any amendment of or supplement to the Registration Statement, the Effective Prospectus or the Final Prospectus or for additional information; the Company shall prepare and timely file with the Commission under Rule 424(b) Commission, promptly upon the Underwriters' request, any amendments of or supplements to the Registration Statement, the Effective Prospectus or the Final Prospectus which, in the Underwriters' opinion, may be necessary or advisable in connection with the distribution of the Rules Shares; and Regulations a the Company shall not file any amendment of or supplement to the Registration Statement, the Effective Prospectus in a form or the Final Prospectus which is not approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) after reasonable notice thereof. The Company will shall advise the Representatives promptly (A) when the Registration Statement or any post effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or (D) of the issuance by the Commission or any jurisdiction or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement Statement, suspending or preventing the use of any Preliminary Prospectus, the Effective Prospectus or the Final Prospectus or suspending the qualification of the Shares for offering or sale in any jurisdiction, or of the institution of any proceedings for that any such purpose. The ; and the Company will shall use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and other such order and, should a stop order or other such order be issued, to obtain as soon as possible the lifting thereof, if issued.
(iiiii) The Company will cooperate with take or cause to be taken all necessary action and furnish to whomever the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applicationsdirect, file such documents, and furnish such information as may be reasonably required in qualifying the Shares for that purpose, provided offer and sale under the Company shall not be required to qualify securities or Blue Sky laws of such jurisdictions as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare the Underwriters may designate and file such statements, reports, and other documents, as are or may be required to will continue such qualifications in effect for so as long a period as may be reasonably necessary to complete the Representatives may reasonably request for distribution of the Shares.
(iviii) The Company will deliver to, or upon Within the order oftime during which a Final Prospectus relating to the Shares is required to be delivered under the Securities Act, the RepresentativesCompany shall comply with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to timetime in force, so far as many copies is necessary to permit the continuance of any Preliminary Prospectus sales of or dealings in the Shares as contemplated by the Representatives may reasonably requestprovisions hereof and the Final Prospectus. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) If during the such period in which a prospectus is required by law to be delivered by an Underwriter or dealer any event shall occur occurs as a result of which, in which the judgment Final Prospectus as then amended or supplemented would include an untrue statement of the Company a material fact or in the opinion of counsel for the Underwriters, it becomes omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserthen existing, not misleading, or, or if during such period it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement the Final Prospectus to comply with the Securities Act, the Company shall promptly notify the Representatives and shall amend the Registration Statement or supplement the Final Prospectus so that (at the Prospectus as so amended or supplemented will not, in the light expense of the circumstances when it is Company) so delivered, be misleading, as to correct such statement or so that the Prospectus will comply with lawomission or effect such compliance.
(viiv) The Company will furnish without charge to the Representatives and make generally available to its security holdersthe Underwriters copies of the Registration Statement (four of which shall be signed and shall be accompanied by all exhibits), as soon as it is practicable to do soeach Preliminary Prospectus, but in the Effective Prospectus and the Final Prospectus, and all amendments and supplements thereto, including any event not later than 15 months prospectus or supplement prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Underwriters may reasonably request.
(v) The Company will (A) deliver to the Representatives at such office or offices as the Representatives may designate as many copies of the Preliminary Prospectus and Final Prospectus as the Representatives may reasonably request, (B) for a period of not more than nine months after the Registration Statement becomes effective, send to the Representatives as many additional copies of the Final Prospectus and any supplement thereto as the Representatives may reasonably request, and (C) following nine months after the Registration Statement becomes effective, send to the Representatives at their expense as many additional copies of the Final Prospectus and any supplement hereto as the Representative may reasonably request.
(vi) The Company shall make generally available to its security holders, in the manner contemplated by Rule 158(b) under the Rules and Regulations as promptly as practicable and in any event no later than 45 days after the end of its fiscal quarter in which the first anniversary of the effective date of the Registration Statement occurs, an earning earnings statement (which need not be auditedsatisfying the provisions of Section 11(a) in reasonable detail, of the Securities Act covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for will apply the net proceeds from the sale of the Shares to be sold by it as set forth under the caption "Use of Proceeds" in the Final Prospectus and will timely report such use of proceeds in its periodic reports filed pursuant to sections 13(a) and 15(d) of the Exchange Act in accordance with Rule 463 of the Securities Act or any successor provision.
(viii) During a period of five years from the Closing Dateeffective date of the Registration Statement or such longer period as the Representatives may reasonably request, deliver the Company will furnish to the Representatives copies of annual all reports and copies of all other documents, reports and information communications (financial or other) furnished by the Company to its stockholders shareholders and, as soon as available, copies of any reports or financial statements furnished or filed with any securities exchange pursuant by the Company to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act any national securities exchange or over-the-counter market on which any class of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale or other disposition of any Common Stock securities of the Company will may be made listed for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, grant options and issue shares upon the exercise of options issued pursuant to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)trading.
(ix) The Company will use its best efforts will, from time to listtime, subject to notice after the effective date of issuancethe Registration Statement file with the Commission such reports as are required by the Securities Act, the Exchange Act and the Rules and Regulations, and shall also file with foreign, state and other governmental securities commissions in jurisdictions where the Shares on have been sold by the Nasdaq National MarketUnderwriters (as the Representatives shall have advised the Company in writing) such reports as are required to be filed by the securities acts and the regulations of those jurisdictions.
(x) The Except pursuant to this Agreement or with the Representatives' written consent, for a period of 180 days from the effective date of the Registration Statement, the Company will not, and the Company has caused provided agreements (the "Lockup Agreements") executed by each officer of its officers, directors and director and specific shareholders 5% or greater Shareholders providing that for a period of [150] days from the effective date of the Registration Statement, such person will not, offer for sale, sell (other than the issuance by the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, shares of Common Stock pursuant to which each such person shall agree not to directly acquisitions or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option options granted pursuant to purchase existing employee benefit plans and agreements), grant any options (other than pursuant to existing employee benefit plans and agreements), rights or warrants with respect to any shares of Common Stock) , securities convertible into shares of Common Stock or any other capital stock of the Company, or otherwise dispose of, directly or indirectly, any shares of Common Stock of the Company owned by or such person other securities or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements")capital stock.
(xi) The Neither the Company shall apply the net proceeds nor any of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not investdirectors, officers or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company controlling persons, has taken or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action resulting in a violation of Regulation M under the Exchange Act, or designed to cause or result in, or that which has constituted or which reasonably might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company or facilitation of the sale or resale of the Shares.
(xii) The Company will either conduct its business and operations, and that of its Subsidiaries, as described in the Final Prospectus or, if the Company makes any material change to its or its Subsidiaries' business or operations as so conducted, promptly disclose such change generally to the Company's security holders.
(xiii) The Company will use its best efforts to effect the listing of the Common Stock, subject to notice of issuance, on the Nasdaq National Market on or before the effective date of the Registration Statement.
(b) Each of the Selling Shareholders Shareholders, severally and not jointly, covenants and agrees with each of the several Underwriters that:
(i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Such Selling Shareholder will cooperate to the extent necessary to cause the Registration Statement or request for registration for any post-effective amendment thereto to become effective at the offer earliest possible time.
(ii) Such Selling Shareholder will pay all federal and other taxes, if any, on the transfer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered Shares being sold by such Selling Shareholder to the Underwriters.
(iii) Such Selling Shareholder will do or perform all things required to be done or performed by such Selling Shareholder prior to the First Closing Date to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement or the Power of Attorney and Custody Agreement.
(iv) Such Selling Shareholder has delivered to the Company an agreement pursuant to which such Selling Shareholder has agreed that during the period of 180 days from the date the Registration Statement is declared effective under the Securities Act, such Selling Shareholder will not, without your prior written consent, offer, pledge, issue, sell, contract to sell, grant any option for the sale of, or otherwise dispose of (or announce any offer, pledge, sale, grant of an option to purchase or other disposition), directly or indirectly, any shares of Common Stock or securities convertible into, exercisable or exchangeable for, shares of Common Stock.
(v) Such Selling Shareholder will not (i) take, directly or indirectly, prior to the termination of the underwriting syndicate contemplated by this Agreement, any action designed to cause or to result in, or that might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Shares, (ii) In order sell, bid for, purchase or pay anyone any compensation for the solicitation of purchases of, the Shares or (iii) pay or agree to document the Underwriters' compliance with the reporting and withholding provisions pay to any person any compensation for soliciting another to purchase any other securities of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect Company.
(vi) Such Selling Shareholder will deliver to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you Custodian on or prior to or at the First Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations Regulations in lieu thereof).
(iiivii) Such Selling Shareholder will not takefurnish any documents, directly instruments or indirectly, any action designed to cause or result in, or that has constituted or might other information which you may reasonably be expected to constitute, request in connection with the stabilization or manipulation sale and transfer of the price of any securities Shares.
(viii) Such Selling Shareholder will use such Selling Shareholder's best efforts to comply or cause to be complied with the conditions to the obligations of the CompanyUnderwriters in Section 7 hereof insofar as such conditions relate to such Selling Shareholder.
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters with respect to (i) through (x) below, and with the Selling Shareholders with respect to (i) through (v) only that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Representatives or the Selling Shareholders shall not previously have been advised and furnished with a copy or to which the Representatives or the Selling Shareholders shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives and the Selling Shareholders promptly (A) when the Registration Statement or any post effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives and the Selling Shareholders in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies each Selling Shareholder one copy of the Registration Statement and all amendments thereto including all exhibits filed therewith, therein and will deliver to the Representatives such number of copies of the Registration Statement (including such number Statement, one of copies of the which will be signed and will include all exhibits filed therewith that may reasonably be requested)therewith, and documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(v) Within the time during which a prospectus relating to the Shares is required to be delivered under the Act, the Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the UnderwritersUnderwriters or the Selling Shareholders, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company willshall not (a) issue, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the SEC any registration statement relating to, any additional shares of its common stock or securities convertible into or exchangeable or exercisable for any shares of its common stock, enter into a period transaction which would have the same effect or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, or (b) grant any options whatsoever in respect of five years from the Closing Dateits shares, deliver to the Representatives copies except grants of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange employee stock options pursuant to the requirements terms of such exchange or with a plan in effect on the Commission pursuant to the Act or the Securities Exchange Act date of 1934this Agreement, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale or other disposition of any Common Stock of the Company will be made each case for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with without the prior written consent of Alexthe Representatives. Xxxxx & Sons IncorporatedThe foregoing restrictions shall not apply to any registration statement, except that the Company mayor any shares issued thereunder, without such consent, grant options and issue shares upon the exercise of options issued pursuant relating to the Company's 1996 Stock Option Plan proposed acquisition of Pennichuck Corporation, the issuance by the Company of up to 150,000 Shares under the Company's shelf registration statements or the issuance of shares under the Company's Dividend Reinvestment and 1996 Employee Direct Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)Plan.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(xviii) The Company has caused each executive officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the UnderwritersUnderwriters ("Lockup Agreements"), pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of, directly or indirectly make or cause any offeringindirectly, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements")the Representatives.
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiiiix) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xivx) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with each of the several Underwriters that:
(i) No offeringEach Selling Shareholder shall not offer, sale sell, contract to sell, pledge or other disposition (not including the exercise of an option to purchase otherwise dispose of, directly or indirectly, any additional shares of Common Stock) of Common Stock the Company's common stock or securities convertible into or exchangeable or exercisable for any shares of the Company owned by Company's common stock, enter into a transaction which would have the Selling Shareholder same effect or request for registration for publicly disclose the offer intention to make any such offer, sale, pledge, disposition or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made filing for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with without the prior written consent of Alexthe Representatives. Xxxxx & Sons Incorporated and except The foregoing restrictions shall not apply to the proposed purchase by the Company of 2,500,000 shares from the Selling Shareholders, as specifically provided described in the Lockup Registration and Share Purchase Agreement delivered by such between the Company and the Selling Shareholder to the UnderwritersShareholders.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Registration and Stock Purchase Agreement (Philadelphia Suburban Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, reports and other documents, documents as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto thereto, including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (A) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (B) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus, so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders shareholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amendedAct. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Alex. Xxxxx Browx & Sons Xons Incorporated, except that the Company may, without such consent, grant options and (A) issue shares upon the exercise of options outstanding on the date of this Agreement issued pursuant to its 1995 Stock Option Plan, (B) issue shares of Common Stock upon the Company's 1996 exercise of stock options and purchase rights granted after the date hereof under the 1995 Stock Option Plan and the 1996 Employee Stock Purchase Plan or and (C) issue shares of Common Stock in respect of the Company's acquisition of the stock or assets of another entity so long as consideration for acquisitions the shares so issued by the Company may not be resold until 180 days after the date of this Agreement. The Company shall not file with the Commission any registration statements (provided that including without limitation any registration statements on Form S-8 or any successor form) with respect to any stock option, stock purchase, restricted stock or other similar plans until at least 90 days following the recipient date of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)this Agreement.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares have its Common Stock authorized for inclusion on the Nasdaq National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreementAgreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly offer, sell, sell short or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx Browx & Sons Xons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the ProspectusProspectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition (not including the exercise of an option to purchase any shares of Common Stock) of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request for the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx Browx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the UnderwritersXons Incorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Geotel Communications Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters with respect to (i) through (x) below, and with the Selling Shareholders with respect to (i) through (v) only that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Representatives or the Selling Shareholders shall not previously have been advised and furnished with a copy or to which the Representatives or the Selling Shareholders shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives and the Selling Shareholders promptly (A) when the Registration Statement or any post effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives and the Selling Shareholders in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies each Selling Shareholder one copy of the Registration Statement and all amendments thereto including all exhibits filed therewith, therein and will deliver to the Representatives such number of copies of the Registration Statement (including such number Statement, one of copies of the which will be signed and will include all exhibits filed therewith that may reasonably be requested)therewith, and documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(v) Within the time during which a prospectus relating to the Shares is required to be delivered under the Act, the Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the UnderwritersUnderwriters or the Selling Shareholders, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company willshall not (a) issue, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the SEC any registration statement relating to, any additional shares of its common stock or securities convertible into or exchangeable or exercisable for any shares of its common stock, enter into a period transaction which would have the same effect or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, or (b) grant any options whatsoever in respect of five years from the Closing Dateits shares, deliver to the Representatives copies except grants of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange employee stock options pursuant to the requirements terms of such exchange or with a plan in effect on the Commission pursuant to the Act or the Securities Exchange Act date of 1934this Agreement, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale or other disposition of any Common Stock of the Company will be made each case for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with without the prior written consent of Alexthe Representatives. Xxxxx & Sons IncorporatedThe foregoing restrictions shall not apply to any registration statement, except that the Company mayor any shares issued thereunder, without such consent, grant options and issue shares upon the exercise of options issued pursuant relating to the Company's 1996 Stock Option Plan proposed acquisition of Pennichuck Corporation, the issuance by the Company of up to 150,000 Shares under the Company's shelf registration statements or the issuance of shares under the Company's Dividend Reinvestment and 1996 Employee Direct Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)Plan.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(xviii) The Company has caused each executive officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the UnderwritersUnderwriters ("Lockup Agreements"), pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of, directly or indirectly make or cause any offeringindirectly, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements")the Representatives.
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiiiix) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xivx) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with each of the several Underwriters that:
(i) No offeringEach Selling Shareholder shall not offer, sale sell, contract to sell, pledge or other disposition (not including the exercise of an option to purchase otherwise dispose of, directly or indirectly, any additional shares of Common Stock) of Common Stock the Company's common stock or securities convertible into or exchangeable or exercisable for any shares of the Company owned by Company's common stock, enter into a transaction which would have the Selling Shareholder same effect or request for registration for publicly disclose the offer intention to make any such offer, sale, pledge, disposition or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made filing for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with without the prior written consent of Alexthe Representatives. Xxxxx & Sons Incorporated and except The foregoing restrictions shall not apply to the Option Shares (to the extent the Underwriters' over-allotment option is exercised) or the proposed purchase by the Company of 2,500,000 shares from the Selling Shareholders, as specifically provided described in the Lockup Registration and Share Purchase Agreement delivered by such between the Company and the Selling Shareholder to the UnderwritersShareholders.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Philadelphia Suburban Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent In the event of the issuance of any such stop order preventing or suspending the use of the Prospectus and Prospectus, the Company will use its best efforts to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ) and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders shareholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amendedAct. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of BT Alex. Xxxxx & Sons Incorporated, except that Browx Xxxorporated. The foregoing sentence shall not apply to (A) shares of Common Stock issued by the Company may, without such consent, grant options and issue shares upon the exercise of options granted under the stock option plans of the Company in existence as of the date hereof (the "Option Plans"), (B) options to purchase Common Stock granted under the Option Plans, and (C) shares of Common Stock or options or warrants to purchase Common Stock issued pursuant to or granted in connection with acquisitions or corporate stategic partner transactions approved by the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient Board of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)Directors.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the the Nasdaq National Stock Market.
(x) The Company has caused each officer and director and specific shareholders of the Company and the Selling Shareholders to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly offer, sell, sell short, pledge or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of BT Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement Browx Xxxorporated ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the ProspectusProspectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale sale, short sale, pledge or other disposition (not including the exercise of an option to purchase any shares of Common Stock) of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request for the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of BT Alex. Xxxxx & Sons Incorporated and except as specifically provided in Browx Xxxorporated (the "Lockup Agreement delivered by such Selling Shareholder to the UnderwritersAgreements").
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Smith Gardner & Associates Inc)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations Regulations. To the extent applicable, the copies of the Registration Statement and each amendment thereto (Cincluding all exhibits filed therewith), any Preliminary Prospectus or Prospectus (in each case, as amended or supplemented) file on a timely basis all reports and any definitive proxy or information statements required furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed by the Company with the Commission subsequent pursuant to XXXXX, except to the date of the Prospectus and prior to the termination of the offering of the Shares extent permitted by the Underwriters.Regulation S-T.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from Prior to the Closing Date, deliver the Company will furnish to the Representatives copies Underwriters, as soon as they have been prepared by or are available to the Company, a copy of annual reports and copies any unaudited interim financial statements of all other documents, reports and information furnished the Company for any period subsequent to the period covered by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined most recent financial statements appearing in the Rules Registration Statement and Regulations, which are not consolidated in the Company's financial statementsProspectus.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of BT Alex. Xxxxx & Sons IncorporatedXxxxx, except that the Company may, without such consent, grant options and (A) issue shares upon the exercise of (1) options outstanding on the date of this Agreement issued pursuant to the Company's 1996 1993 Stock Option and 1998 Stock Plan and 1996 Employee (2) warrants outstanding on the date of this Agreement, and (B) grant options, offer to sell and sell shares of its Common Stock Purchase Plan or issue shares as consideration for acquisitions (provided that to its employees, directors and consultants pursuant to the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)1998 Stock Plan.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq The NASDAQ National Stock Market.
(x) The Company has caused each officer and director and specific shareholders holding [A MINIMUM OF ___%/IN THE AGGREGATE ___%] OF THE COMMON STOCK (INCLUDING ANY CAPITAL STOCK CONVERTIBLE INTO COMMON STOCK) of the Company to furnish to you, on or prior to the date of this agreement, a letter or lettersletters (a "Lockup Agreement"), in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree has agreed for a period expiring 180 days after the date of the Prospectus not to (A) offer to sell, contract to sell, transfer or otherwise dispose of, directly or indirectly make indirectly, any shares of capital stock of the Company, including shares of common stock of any series or cause class, any offeringoptions, sale rights or other warrants to purchase any shares of capital stock of the Company (including any stock appreciation right, or similar right with an exercise or conversion privilege at a price related to, or derived from, the market price of the capital stock of the Company) or any securities convertible into or exchangeable for shares of capital stock of the Company owned directly by the undersigned or with respect to which the undersigned has the power of disposition (not including including, without limitation, shares of capital stock of the exercise Company which the undersigned may be deemed to beneficially own in accordance with the rules and regulations promulgated under the Exchange Act; provided, however, that each such person may transfer shares of an option Common Stock or options to purchase shares of Common Stock) of any shares of Common Stock of the Company owned by pursuant to a bona fide gift to such person or request the registration person's immediate family members, trusts for the offer or sale benefit of any of the foregoing (or as to such immediate family members and partnerships in which such person has immediate family members are the right only partners if such transferee executes and delivers to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of BT Alex. Xxxxx & Sons Incorporated a Lockup Agreement in the same form and except content, and with the same expiration date, as otherwise provided the Lockup Agreement signed by such person, or (B) engage in such letter agreement any hedging transactions ("Lockup Agreements")including short sales, put and call options, cashless collar transactions or other forms of derivative security transactions) with respect to the Common Stock that may have an impact on the market price of the Common Stock.
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the ProspectusProspectus and shall include such information with respect thereto in such reports filed with the Commission as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
: (i) No offeringsuch Selling Shareholder shall not for the period beginning on the date hereof and expiring 180 days after the date of the Prospectus offer to sell, sale contract to sell, transfer or other otherwise dispose of, directly or indirectly, any shares of capital stock of the Company, including shares of common stock of any series or class, any options, rights or warrants to purchase any shares of capital stock of the Company (including any stock appreciation right, or similar right with an exercise or conversion privilege at a price related to, or derived from, the market price of the capital stock of the Company) or any securities convertible into or exchangeable for shares of capital stock of the Company owned directly by such person or with respect to which such person has the power of disposition (not including including, without limitation, shares of capital stock of the exercise Company which such person may be deemed to beneficially own in accordance with the rules and regulations promulgated under the Exchange Act; provided, however, that each such person may transfer shares of an option Common Stock or options to purchase shares of Common StockStock pursuant to a bona fide gift to such person's immediate family members, trusts for the benefit of such immediate family members and partnerships in which such immediate family members are the only partners if such transferee executes and delivers to BT Alex. Xxxxx Incorporated a Lockup Agreement in the same form and content, and with the same expiration date, as the Lockup Agreements referred to in Section 4(a)(x) of Common Stock of the Company owned by the hereof; or
(ii) such Selling Shareholder or request for registration shall not for the offer or sale of any of period beginning on the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 date hereof and expiring 180 days after the date of this Agreementthe Prospectus engage in any hedging transactions (including short sales, directly put and call options, cashless collar transactions or indirectly, by such Selling Shareholder otherwise than hereunder or other forms of derivative security transactions) with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder respect to the UnderwritersCommon Stock that may have an impact on the market price of the Common Stock.
(iiiii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or and Form-8(or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iiiiv) Such Selling Shareholder will shall not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Dset Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made availableRegulations.
(vii) The Company will, for a period of five three years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or a derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company except pursuant to the Company's 1995 Stock Option Plan, pursuant to the exercise of stock purchase warrants by the Selling Shareholder, or as otherwise than provided hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, grant options and issue shares upon the exercise of options issued pursuant to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period).
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the Underwriters.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.&
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided that the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, including documents incorporated by reference in any of the foregoing, as the Representatives may reasonably request.
(v) If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from Prior to the Closing Date, deliver the Company will furnish to the Representatives copies Underwriters, as soon as they have been prepared by or are available to the Company, a copy of annual reports and copies any unaudited interim financial statements of all other documents, reports and information furnished the Company for any period subsequent to the period covered by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined most recent financial statements appearing in the Rules Registration Statement and Regulations, which are not consolidated in the Company's financial statementsProspectus.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of BT Alex. Xxxxx & Sons IncorporatedBrowx Xxxorporated, except that the Company may, without such consent, grant options and (A) issue shares upon the exercise of (1) options outstanding on the date of this Agreement issued pursuant to the Company's 1996 currently existing stock-based compensation plans and (2) warrants outstanding on the date of this Agreement, and (B) grant options, offer to sell and sell shares of its Common Stock Option Plan to its employees, directors and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not consultants pursuant to offer, sell or dispose of such shares until the expiration of such 90 day period)its currently existing stock-based compensation plans.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly sell, offer or indirectly make contract to sell, sell short or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of BT Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement Browx Xxxorporated ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition (not including the exercise of an option to purchase any shares of Common Stock) of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request for the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of BT Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the UnderwritersBrowx Xxxorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the CompanyCompany .
Appears in 1 contract
Samples: Underwriting Agreement (Tweeter Home Entertainment Group Inc)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process or subject itself to taxation in any jurisdiction where it is not now so qualified or required to file such a consentconsent or subject to taxation. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four one signed copies copy of the Registration Statement and two signed copies of all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made availableRegulations.
(vii) The Company will, for a period of five years from Prior to the Closing Date, deliver the Company will furnish to the Representatives copies Underwriters, as soon as they have been prepared by or are available to the Company, a copy of annual reports and copies any unaudited interim financial statements of all other documents, reports and information furnished the Company for any period subsequent to the period covered by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined most recent financial statements appearing in the Rules Registration Statement and Regulations, which are not consolidated in the Company's financial statementsProspectus.
(viii) No Except as otherwise provided in a prior written consent of Wedbush Xxxxxx Securities Inc. after the date hereof, no offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons IncorporatedCompany, except that other than: (a) pursuant to this Agreement; (b) Common Stock contributed by the Company may, without such consent, grant options to its 401(k) plan; and issue shares upon the exercise of options issued (c) pursuant to stock options granted by the Company's 1996 Stock Option Plan Company to employees and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that directors in the recipient ordinary course of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)business.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the The Nasdaq National Market.
(x) The Company has caused each officer and officer, director and specific shareholders shareholder of the Company set forth on Schedule IV hereto to furnish to you, on or prior to the date of this agreementAgreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly offer, sell, sell short or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for shares of Common Stock or derivative of Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement Wedbush Xxxxxx Securities Inc. ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition (not including the exercise of an option to purchase any shares of Common Stock) of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request for the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the Underwriters.Wedbush Xxxxxx Securities Inc.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made availableRegulations.
(vii) The Company will, for a period of five three years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or a derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company except pursuant to the Company's 1995 Stock Option Plan, or as otherwise than provided hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, grant options and issue shares upon the exercise of options issued pursuant to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period).
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the Underwriters.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.&
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and Regulations. To the extent applicable, the copies of the Registration Statement (C) file on a timely basis including all reports and exhibits filed therewith), any definitive proxy Preliminary Prospectus or information statements required Prospectus furnished to the Underwriters shall be identical to the copies thereof electronically filed by the Company with the Commission subsequent on XXXXX, except to the date of the Prospectus and prior to the termination of the offering of the Shares extent permitted by the Underwriters.Regulation S-T.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for to the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders shareholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.. To the extent applicable, such reports and documents shall be identical to the copies thereof electronically filed with the Commission on XXXXX, except to the extent permitted by Regulation S-T.
(viii) No offeringThe Company will not issue, sale sell or otherwise dispose of, directly or indirectly, any shares of Common Stock or other disposition securities convertible into or exchangeable or exercisable for shares of any Common Stock or derivative of the Company will be made Common Stock (or enter into any agreement for such) for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company Agreement otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, grant options and (A) issue shares upon the exercise of options outstanding on the date of this Agreement issued pursuant to the Company's its 1991 Amended and Restated Stock Option Plan, 1996 Non-Employee Directors Stock Option Plan and 1996 Employee and Consultant Stock Purchase Option Plan or issue and (B) grant options and offer to sell shares as consideration for acquisitions of Common Stock to its employees and directors pursuant to the plans listed in clause (A), provided that the recipient Company will not grant any options which will become exercisable within 180 days after the date of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)this Agreement.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish be furnished to you, on or prior to the date of this agreementAgreement, a letter or lettersletters executed by (i) each officer and director of the Company, substantially in the form attached hereto as Exhibit A-1; (ii) certain shareholders of the Company, substantially in the form attached hereto as Exhibit A-1 or A-2; and substance satisfactory to the Underwriters, pursuant to which (iii) each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise holder of an option options to purchase shares of Common Stock) of any shares of Common Stock of (other than the Company owned by such person or request officers and directors referred to in clause (i) above), substantially in the registration for the offer or sale of any of the foregoing (or form attached hereto as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements")Exhibit A-3.
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the ProspectusProspectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Such Selling Shareholder has the right furnished to direct the disposition of) will be made for a period of 90 days after you, on or prior to the date of this Agreement, directly a letter or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided letters substantially in the form attached hereto as Exhibit A-1 or A-2 (such letters of the Selling Shareholders and the letters referred to in Section 4(a)(x) being collectively referred to as the "Lockup Agreement delivered by such Selling Shareholder to the UnderwritersAgreements").
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the such Selling Shareholders Shareholder agrees to deliver to you the Representatives prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Information Management Associates Inc)
Covenants of the Company and the Selling Shareholders. (a) A. The Company covenants and agrees with the several Underwriters that:
(ia) The Company will (A) use its best efforts to cause the Registration Statement and any amendment thereto to become effective or, if the procedure in Rule 430A of the Rules as promptly as possible and Regulations is followed, to prepare and timely file with the Commission under Rule 424(bwill notify you immediately (i) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of when the Registration Statement in reliance on Rule 430A of the Rules and Regulationsany amendments thereto become effective, (Bii) not file of any request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or (Diii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceedings therefor, (iv) of the receipt of any comments from the Commission, and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. The If the Commission shall propose or enter a stop order at any time, the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and and, if issued, to obtain the lifting of such order as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably requestpossible. The Company will deliver to, not file any amendment to the Registration Statement or upon the order of, the Representatives during the period when delivery any amendment of a Prospectus is required under the Act, as many copies of or supplement to the Prospectus in final form, before or as thereafter amended or supplemented, as after the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies effective date of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may which you shall reasonably be requested), and of all amendments thereto, as the Representatives may reasonably requestobject in writing after being timely furnished in advance a copy thereof.
(vb) If during the period in which at any time when a prospectus relating to the Shares is required by law to be delivered by an Underwriter or dealer under the Act any event shall occur have occurred as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement which the Prospectus in order as then amended or supplemented includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Act or the Regulations, or to file under the Exchange Act so as to comply therewith any lawdocument incorporated by reference in the Registration Statement or the Prospectus or in any amendment thereof or supplement thereto, the Company will notify you promptly will and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) that will correct such statement or omission or which will effect such compliance and will use its best efforts to have any amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus declared effective as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with lawsoon as possible.
(vic) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all documents incorporated by reference therein, and all amendments thereto, and the Company will promptly deliver to each of the several Underwriters such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents incorporated by reference in the Registration Statement and the Prospectus or any amendment thereof or supplement thereto, without exhibits, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time the Registration Statement becomes effective, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares in such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Act) to its security holders, holders and to you as soon as it is practicable to do sopracticable, but in any event not later than 15 months 45 days after the end of its fiscal quarter in which the first anniversary of the effective date of the Registration StatementStatement occurs (or not later than 90 days after the end of such fiscal quarter if such fiscal quarter is the last fiscal quarter of the fiscal year), an earning earnings statement (which need not be auditedaudited but which shall satisfy the provisions of Section 11(a) in reasonable detail, of the Act) covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(viif) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale or other disposition of any Common Stock of the Company will be made for During a period of 90 days after from the date of this Agreementthe Prospectus, the Company will not, without your prior written consent, issue, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, by any Class A Common Stock (or any securities convertible into, exercisable for or exchangeable for Class A Common Stock), and the Company otherwise will obtain the under taking of each person who is an executive officer and/or director as of the date of this Agreement not to engage in any of the aforementioned transactions on their own behalf, other than hereunder or with the prior written consent Company's sale of Alex. Xxxxx & Sons IncorporatedShares hereunder, except that the Company may, without such consent, grant options and issue shares Company's issuance of Class A Common Stock upon the exercise of presently outstand ing stock options, grants of employee options issued pursuant to the Company's 1996 Stock Option Plan employee stock purchase plan, the grant of options to directors of the Company as provided in the Company's director stock option plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient issuance of shares of Class A Common Stock upon exercise thereof, and in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)connection with acquisitions.
(ixg) The During a period of three years from the effective date of the Registration Statement, the Company will use furnish to the Representatives, upon request, copies of (i) all reports to its best efforts to listshareholders, subject to notice of issuanceand (ii) all reports, financial statements and proxy or information statements filed by the Shares on Company with the Nasdaq National MarketCommission or any national securities exchange or quotation system upon which the Class A Common Stock may be listed.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xivh) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitutecause or result in (i) stabilization of the price of the Class A Common Stock to facilitate the sale or resale of the Class A Common Stock, the stabilization or (ii) manipulation of the price of any securities of the CompanyClass A Common Stock.
(bi) Each The Company will take, and will cause its subsidiaries to take, such action as may be necessary to comply with the rules and regulations of the Nasdaq National Market in respect of the offering of the Shares.
(j) The Company will apply the proceeds from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus and will take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act, and the rules and regulations thereunder.
B. Each Selling Shareholders Shareholder severally covenants and agrees with the several Underwriters that:
(i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for that during a period of 90 days after from the date of this Agreementthe Prospectus, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the will not, without your prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder consent, sell, offer or agree to the Underwriters.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplatedsell, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not takeotherwise dispose of, directly or indirectly, any action designed to cause Class A Common Stock (or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Companyconvertible into, exercisable for or exchangeable for Class A Common Stock).
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, (B) not file any amendment to the Registration Statement or supplement to the Prospectus (or document incorporated by reference therein) of which the Representatives Representative shall not previously have been advised and furnished with a copy or to which the Representatives Representative shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(a) (ii) The Company will advise the Representatives Representative promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale or other disposition of any Common Stock of the Company will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, grant options and issue shares upon the exercise of options issued pursuant to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period).
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the Underwriters.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, reports and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not no later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale, short sale or other disposition of any Common Stock of the Company will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, grant options and issue shares upon the exercise of options issued pursuant to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period).
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder securities convertible into or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the Underwriters.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.exchangeable or
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of conformed copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five three years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale, short sale or other disposition (or agreement for such) of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of BT Alex. Xxxxx & Sons Incorporated, except that the Company mayforegoing shall not apply to: (i) shares issued in any acquisition by the Company, without such consent(ii) the Shares and shares or other securities issued pursuant to employee benefit plans, grant stock options plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and issue (iii) shares issued upon the exercise of options issued pursuant to granted under the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that stock option plan described in the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)Prospectus.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the The Nasdaq Stock Market (National Market).
(x) The Company has caused each officer and officer, director and specific shareholders of the Company Selling Shareholder to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly offer, sell, sell short or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of BT Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements"); provided, however, that transfers pursuant to applicable laws of -------- descent and distribution and transfers within the person's Family Group (where, "Family Group") means spouse, siblings and descendants (whether natural or adopted) and any of such descendant's spouses), to any trust which at the time of such transfer and at all times thereafter is and remains solely for the benefit of such person or such person's Family Group, or to any family partnership, the partners of which consists solely of such person, such person's Family Group and/or such trusts, shall not be prohibited so long as such transferee or transferees shall first have executed a letter or letters containing the prohibitions on transfer referred to above in this paragraph (x).
(xi) The Company shall apply the net proceeds of its the sale of the Firm Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition (not including the exercise of an option to purchase any shares of Common Stock) of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request for the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of BT Alex. Xxxxx & Sons Incorporated and Incorporated, except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the Underwritersextent permitted by paragraph (a)(x) of this Section.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Colorado Greenhouse Holdings Inc)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the RepresentativesRepresentatives , from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed three signed, xeroxed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including any documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives Underwriters copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amendedAct. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreementthe Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of BT Alex. Xxxxx & Sons Brown Incorporated, except that the Company xxx Xompany may, without such consent, grant options and issue shares (A) upon the exercise of options issued granted under its stock option plans, (B) upon exercise of warrants outstanding on the date of this Agreement, (C) in connection with acquisitions of businesses, (D) in connection with conversion of shares of Restricted Common Stock to Common Stock or (E) pursuant to employee benefit or compensation plans existing on the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)date hereof.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National MarketNew York Stock Exchange.
(x) The Company has caused each executive officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreementAgreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree has agreed not to directly offer, sell, sell short or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) otherwise dispose of any shares of Common Stock of the Company owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) or request the registration for the offer or sale of any of the foregoing for a period of 90 180 days after the date of this Agreementthe Prospectus, directly or indirectly, except with the prior written consent of BT Alex. Xxxxx & Sons Brown Incorporated and except as otherwise provided in such letter agreement ("Lockup AgreementsAgrexxxxxs").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the ProspectusProspectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use use, the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries Acquired Companies to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition (not including the exercise of an option to purchase any shares of Common Stock) of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of BT Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the UnderwritersBrown Incorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement and the ADS Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives Representative shall not previously have been advised and furnished with a copy or to which the Representatives Representative shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares Offered Securities by the Underwriters.
(ii) The Company will advise the Representatives Representative promptly (A) when the Registration Statement and the ADS Registration Statement (if its effectiveness is subsequent to the execution and delivery of this Agreement) or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives Representative in endeavoring to qualify the Shares Offered Securities for sale under the securities laws of such jurisdictions as the Representatives Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives Representative may reasonably request for distribution of the SharesOffered Securities.
(iv) The Company will deliver to, or upon the order of, the RepresentativesRepresentative, from time to time, as many copies of any Preliminary Prospectus as the Representatives Representative may reasonably request. The Company will deliver to, or upon the order of, the Representatives Representative during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives Representative may reasonably request. The Company will deliver to the Representatives Representative at or before the Closing Date, four signed copies of each of the Registration Statement and the ADS Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives Representative such number of copies of the Registration Statement and the ADS Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives Representative may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from Prior to the Closing Date, deliver the Company will furnish to the Representatives copies Underwriters, as soon as they have been prepared by or are available to the Company, a copy of annual reports and copies any unaudited interim financial statements of all other documents, reports and information furnished the Company for any period subsequent to the period covered by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined most recent financial statements appearing in the Rules Registration Statement and Regulations, which are not consolidated in the Company's financial statementsProspectus.
(viii) No offering, sale or other disposition of any Common Stock of the Company will be made for For a period of 90 180 days after the date of this Agreementthe initial public offering of the Offered Securities, the Company will not, and shall procure its Subsidiaries, its officers, directors and specified shareholders not to, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, by or file with the Company otherwise than hereunder Commission a registration statement under the Act relating to, any additional Shares or with ADSs or securities convertible into or exchangeable or exercisable for any Shares or ADSs, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Alex. Xxxxx & Sons IncorporatedDeutsche Bank Securities Inc., except that grants of employee stock options pursuant to the Company may, without such consent, grant options terms of a plan in effect on the date hereof and issue shares upon issuances of Shares pursuant to the exercise of options issued pursuant to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)options.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares Offered Securities on the Nasdaq National Market. In connection with the application to quote the Offered Securities on the Nasdaq National Market, the Company will furnish from time to time any and all documents, instruments, information and undertakings and publish all advertisements or other material that may be necessary in order to effect and maintain such quotation.
(x) The Company has caused each officer and director and specific shareholders of shall cause SMI Taiwan to implement the Company to furnish to you, on or prior to three conditions as described in the date of this agreement, a letter or letters, Prospectus in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except accordance with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided IC approvals referred to in such letter agreement ("Lockup Agreements")Section 1(a)(xxxviii) hereof.
(xi) The Company will ensure that it is in compliance with other applicable provisions of the Xxxxxxxx-Xxxxx Act and the corporate governance rules of the Nasdaq National Market upon the effectiveness of such provisions upon the subsequent release by the Commission of rules and regulations promulgated under the Xxxxxxxx-Xxxxx Act.
(xii) The Company shall apply the net proceeds of its sale of the Shares Offered Securities as set forth in the ProspectusProspectus under the caption “Use of Proceeds” and shall file such reports with the Commission with respect to the sale of the Offered Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xiixiii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares Offered Securities in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiiixiv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stockcapital stock of the Company.
(xivxv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company in violation of Regulation M under the Exchange Act.
(xvi) No action has been or, prior to the completion of the distribution of the Offered Securities, will be taken by the Company in any jurisdiction outside the United States and Canada that would permit a public offering of the Offered Securities, or possession or distribution of the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus issued in connection with the offering of the Offered Securities, or any other offering material, in any country or jurisdiction where action for that purpose is required.
(xvii) The Company will comply with the terms of the Deposit Agreement so that the ADRs will be executed by the Depositary and delivered to the Underwriters pursuant to this Agreement, at the applicable Closing Date.
(xviii) The Company will indemnify and hold harmless the Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Offered Securities and on the execution and delivery of this Agreement or the Deposit Agreement.
(xix) The Company will cause Xxxxxxx Xxxx & Xxxxxxx, Cayman Islands counsel for the Company, to issue an opinion as soon as practicable, but in no event later than the third day after the First Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters to the effect that: the persons entered in the Register of Members of the Company have been duly registered as the holders of the relevant shares in accordance with the Memorandum and Articles of Association; each person who has agreed to become a member of the Company and whose name is entered in the Register of Members is deemed to be a member of the Company and, accordingly, has the rights of a member, inter alia, as provided for in the Articles of Association.
(xx) The Company will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
(b) Each of the Selling Shareholders Shareholders, severally and not jointly, covenants and agrees with each of the several Underwriters that:
(i) No offering, sale, short sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock any Shares, ADSs or other capital stock of the Company or other securities convertible, exchangeable or exercisable for the Shares, ADSs or derivative of the Shares or ADSs owned by the Selling Shareholder or request for the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the UnderwritersRepresentative.
(ii) In order to document the Underwriters' ’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the First Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(iv) Such Selling Shareholder will make the necessary filing with the IC under ROC law to report sale of the shares to the Company or to make any investments with the Company, except where such filing is not required by law.
Appears in 1 contract
Samples: Underwriting Agreement (Silicon Motion Technology CORP)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters and the Selling Shareholders that:
(i) The Company will (Ai) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, (Bii) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (Ciii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The , and the Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (Statement, including such number of copies of the exhibits filed therewith that may reasonably be requested)documents incorporated by reference therein, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request.
(v) If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Securities Exchange Act of 1934 which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 18 months after the effective date of the Registration Statement, an earning -- statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale or other disposition of any Common Stock of the Company will be made for a period of 90 120 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, the Representatives except that the Company may, without such consent, grant options and issue shares upon the exercise of options issued pursuant to outstanding on the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient date of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period)this Agreement.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its from the sale of the Shares as set forth to be sold by it hereunder substantially in accordance with the description in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters and the Company that:
(i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for For a period of 90 days after the date of this Agreement, he will not offer to sell, contract to sell, transfer or otherwise dispose of, directly or indirectly, any shares of Common Stock, any options, rights or warrants to purchase any shares of Common Stock (including any stock appreciation right, or similar right with an exercise or conversion privilege at a price related to, or derived from, the market price of the Common Stock) or any securities convertible into or exchangeable for shares of Common Stock owned directly by such Selling Shareholder with respect to which he has the power of disposition (including, without limitation, shares of Common Stock that he may be deemed to beneficially own in accordance with the rules and regulations promulgated under the Exchange Act), or (ii) engage in any hedging transactions with respect to the Common Stock that may have an impact on the market price of the Common Stock, otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the UnderwritersRepresentatives.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at on the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.Regulations
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months 45 days after the effective date close of the Registration Statementperiod covered thereby, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amendedAct. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 ___ days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of BT Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, grant options and issue shares upon the exercise of options issued pursuant to the Company's 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of shares in any such acquisition agrees not to offer, sell or dispose of such shares until the expiration of such 90 day period).
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to directly or indirectly make or cause any offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the Underwriters.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.Xxxxx
Appears in 1 contract
Samples: Underwriting Agreement (Decrane Aircraft Holdings Inc)
